London O. Wright v. Saxon Mortgage Services

The opinion of the court was delivered by: Saundra Brown Armstrong United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND AND AND COSTS DENYING REQUEST FOR FEES

Plaintiff filed the instant mortgage fraud action in Alameda County Superior Court on April 16, 2010. On August 2, 2010, Defendant The Bank of New York Mellon ("Defendant") 14 removed this action under 28 U.S.C. § 1441, asserting federal question jurisdiction under U.S.C. § 1331. The parties are presently before the Court on Plaintiff's motion to remand and 16 request for an award of attorney's fees and costs. Dkt. 19. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS Plaintiff's motion to remand and DENIES his request for fees and costs. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b); N.D. Cal. Civ. L.R. 7-1(b).

On April 16, 2010, Plaintiff filed the instant action in Alameda County Superior Court, violation of California Business and Professions Code § 17200 et seq.; and (8) wrongful 2 foreclosure. See Compl. Plaintiff's claims arise from the Defendants' involvement in an 3 allegedly fraudulent residential mortgage transaction pertaining to Plaintiff's property located in Oakland, California. Id.

On August 2, 2010, Defendant removed the action to this Court under 28 U.S.C. § 1441.

Defendant alleges that Plaintiff's first cause of action -- constructive fraud, deceit, false promise, and concealment under California Civil Code § 1709 et seq. -- is "labeled as a purported state law claim," however, "it is actually a disguised Truth In Lending Act ('TILA') 9 claim" because it "is based entirely on alleged conduct constituting violations of TILA."

A motion for remand is the proper procedure for challenging removal. Remand may be a State court of which the district courts of the United States have original jurisdiction, may be 6 removed by the defendant or the defendants, to the district court of the United States for the 7 district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a).

III.DISCUSSION

"The district courts shall have original jurisdiction of all civil actions arising under the

A.DEFENDANT'S ASSERTION THAT PLAINTIFF'S FIRST CAUSE OF ACTION IS A

TILACLAIM

The federal removal statute provides, in pertinent part, that "any civil action brought in Constitution, laws, or treaties of the United States." Id. § 1331. The "arising under" 10 qualification of § 1331 confers district courts with jurisdiction to hear "[o]nly those cases in 11 which a well-pleaded complaint establishes either that [1] federal law creates the cause of 12 action or that [2] the plaintiff's right to relief necessarily depends on resolution of a substantial 13 question of federal law." Armstrong v. N. Mariana Islands, 576 F.3d 950, 954-55 (9th Cir. 14 2009) (internal quotations omitted). In other words, the federal law must be a "necessary 15 element" of the state law claim. Id. 16 there is no mention of any federal statutes or regulations. "[T]he plaintiff is 'the master of his 18 complaint' and may 'avoid federal jurisdiction by relying exclusively on state law.'" Hunter v. 19

In the instant case, Plaintiff alleges only state law causes of action in his Complaint, and that Plaintiff's first cause of action for constructive fraud, deceit, false promise, and 3 concealment under California Civil Code § 1709 et seq. is actually a disguised TILA claim 4 because it is based entirely on violations of TILA. Though not cited by Defendant, the Court 5 notes that TILA contains a limited preemption provision which preempts state law claims only 6 to the extent they conflict with the provisions of TILA. 15 U.S.C. § 1610(a)(1). Here, Defendant does not argue or make any showing that the common law cause of action at issue is 8 inconsistent with or otherwise completely preempted by TILA. resolution of a substantial question of federal law." Armstrong, 576 F.3d at 955. As noted,

Defendant contends that Plaintiff's first cause of action is based on TILA disclosure violations.

Notice of Removal ¶¶ 11, 12. The Court disagrees. TILA is mentioned nowhere in the Complaint. But even if it were, Defendant ignores that a state common law claim, such as 14 fraud, may properly be predicated upon a duty created by TILA, without transmuting it into a 15 federal claim. See Amparan v. Plaza Home Mortg., Inc., 678 F. Supp. 2d 961, 976 (N.D. Cal. 2008) (citing Lovejoy v. AT & T Corp., 119 Cal. App. 4th 151, 158 (2004)). Moreover, Plaintiff has alleged multiple factual grounds for his claim, including those that have no alleged 18 relation to TILA. See Compl. ¶ 42 (referencing obligations arising under, inter alia, California

Business & Professions Code § 10176 and California Probate Code § 16002 et seq.). Where a 20 violation of a federal statute is one of several independent allegations supporting a state law 21 cause of action, the state law cause of action does not "necessarily turn" on the construction of 22 the federal statute. Rains v. Criterion Sys., Inc., 80 F.3d 339, 345-46 (9th Cir. 1996) ("When a 23 claim can be supported by alternative and independent theories-one one of which is a state 24 law theory and one of which is a federal law theory-federal question jurisdiction does not part and parts B and C of this subchapter do not annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the 28 extent that those laws are inconsistent with the provisions of this subchapter and then only to the extent of the inconsistency."

In its Notice of Removal and its opposition to Plaintiff's motion, Defendant contends Nor is the Court persuaded that "the plaintiff's right to relief necessarily depends on Section 1610(a)(1) states: "Except as provided in subsection (e) of this section, this attach because federal law is not a necessary element of the claim."); see also Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996) ("[I]f a single state-law based theory of relief can 3 be offered for each of the three causes of action in the complaint, then the exercise of removal 4 jurisdiction was improper."). Thus, even if Plaintiff's first cause of action could be construed as referring to violations of federal law, resolution of this claim does not "necessarily turn" on the construction of federal law.

Notice of Removal ¶ 14. At the outset, nowhere in Plaintiff's Complaint does he mention or 14 cite any provision of the federal Fair Debt Collection Practices Act ("FDCPA") or allege any 15 violation of this statute. Indeed, Plaintiff's sixth cause of action exclusively refers to violations 16 of California Civil Code §§ 1788.13(f) and 1788.10(f). Compl. ¶¶ 122-128. These code 17 sections make no reference to any federal statute or regulation. Moreover, Plaintiff's sixth 18 cause of action does not allege, as Defendant asserts, a violation of California Civil Code § 1788.17, which states that "[n]otwithstanding any other provision of this title, every debt 20 collector collecting or attempting to collect a consumer debt shall comply with the provisions 21 of Sections 1692b to 1692j, inclusive, of, and shall be subject to the remedies in Section 1692k 22 of, Title 15 of the United States Code." See Cal. Civ. Code § 1788.17. Therefore, Defendant 23 has mischaracterized Plaintiff's sixth cause of action as incorporating the FDCPA. 24

Even assuming that Plaintiff's sixth cause of action incorporates provisions of the FDCPA, relevant authority provides that federal question jurisdiction cannot be premised on 26 that basis. See Ortega v. HomEq Servicing, 2010 WL 383368, at *5 (C.D. Cal. Jan. 25, 2010) 27 (stating that "[a]lthough [plaintiff's] RFDCPA claim references federal statutes that are part of 28 the FDCPA, such references are inevitable as the California legislature incorporated portions of the FDCPA into its law," and "[s]ince the provisions are incorporated in and made part of state 2 law, referencing the federal statute does not automatically transform [plaintiff's] RFDCPA 3 claim into a federal claim"); Cable v. Protection One, Inc., 2009 WL 2970111, at *1 (C.D. Cal. Sept. 9, 2009) ("To whatever extent the RFDCPA imports elements of the FDCPA, it remains a 5 state claim, and does not invoke federal question jurisdiction."); see also Britz v. Cowan, 192 6 F.3d 1101, 1103 (7th Cir. 1999) ("[A] state cannot expand federal jurisdiction by deciding to 7 copy a federal law.").

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